Judge refuses to block tougher NY gun law

ALBANY – A state judge refused Wednesday to block New York’s tough new gun law challenged in a lawsuit by more than 1,000 people who claim it violates the state constitution because it was passed too quickly and restricts the rights of a citizen militia.

Justice Thomas McNamara said case law by New York’s top court prevents him from reviewing Gov. Andrew Cuomo’s justification for pushing the bill quickly through the Legislature instead of waiting the three days usually required. Cuomo used a “message of necessity” to skirt the waiting period.

Robert Schulz, who brought the suit, said he will ask the Court of Appeals to review the precedent, claiming Cuomo’s emergency justification was false. The law enacted Jan. 15 sets a seven-bullet limit on magazines, tightens the definition of illegal “assault weapons” and requires owners of formerly legal semi-automatic guns to register them.

“I’m a trial-level court and a trial-level judge and I’m constrained to follow the law as set forth by the Court of Appeals,” McNamara said from the bench. “It is clear that judicial intervention, judicial review of a message of necessity, is not allowed.”

The judge gave state attorneys 30 days to file their response to the suit’s underlying claims that the law should be voided as unconstitutional.

Schulz told supporters and other plaintiffs afterward that he wasn’t surprised by the judge’s ruling and will petition the top court Thursday to consider whether governors’ messages of necessity can be reviewed by courts when the facts they use to justify quick legislative action are false.

“They key word there is facts. Facts have to be true,” he argued before McNamara.

Cuomo’s message to lawmakers, who gave final passage to the 59-page bill the day after it was introduced, said: “Some weapons are so dangerous and some ammunition devices so lethal, that New York State must act without delay to prohibit their continued sale and possession in the state in order to protect its children, first responders and citizens as soon as possible. This bill would do so by immediately banning the ownership, purchase and sale of assault weapons and large capacity ammunition feeding devices, and eliminate them from commerce in New York State.”

Schulz told the court that he owns a semi-automatic rifle with a pistol grip, now classified as an assault weapon under the new law, which he can legally keep provided it’s registered within 18 months. Therefore the law didn’t actually prohibit owning those guns, he said, adding that Cuomo himself estimated there were about 1 million of them in New York.

He also argued that the legislative deal was reached between Cuomo and legislative leaders, and the Assembly and Senate accepted his message of necessity without having it read aloud and passed the legislation with little time to read it and no public debate.

Assistant Attorney General James McGowan said the suit’s focus is assault weapons, but the law does many things, including requiring federal background checks for private gun sales, setting new registration requirements and enacting tougher penalties for gun crimes.

“In some respects it’s exceedingly offensive to suggest there’s no immediate need for the passage of this bill,” he said, citing mass shootings last year that involved assault weapons and large-capacity magazines.

H. William Van Allen of Hurley, another plaintiff, said for him “it’s strictly a state constitutional issue” – that the governor and Legislature simply ignored it by using the message of necessity to push through the law.

“I don’t want to see us disarmed,” said Fairlene Rabenda of Poughkeepsie, another plaintiff, citing the federal constitution’s right to bear arms. “It’s an affront to the Second Amendment.”

The suit cites Article XII of New York’s constitution, which says: “The defense and protection of the state and of the United States is an obligation of all persons within the state. The legislature shall provide for the discharge of this obligation and for the maintenance and regulation of an organized militia.”

Schultz also argues that the 1,256 plaintiffs’ obligation to defend the state and nation was violated by the new law. They have the right, specified in New York’s Civil Rights Law, “to be armed with weaponry suitable for use by the militia in warfare and for the general defense of the community,” he wrote.

McGowan countered that New York has had an assault weapon ban in place since 2000 and regulated firearms and related materials for a century.

“Obviously the Legislature could, and did, determine that possession of certain semi-automatic assault weapons and high-capacity magazines was outside the ambit of the right to bear arms the Legislature granted in Civil Rights Law,” he wrote.